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Commonwealth v. Lutskov

Supreme Judicial Court of Massachusetts, Hampden

September 14, 2018

COMMONWEALTH
v.
MAKSIM LUTSKOV.

          Heard: March 5, 2018.

          After transfer to the Hampden County Division of the Juvenile Court Department, the cases were tried before Patricia M. Dunbar, J., and a motion for postconviction relief, filed on November 28, 2016, was heard by Carol A. Shaw, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Merritt Schnipper for the defendant.

          David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

          Barbara Kaban, for Youth Advocacy Division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief.

          Meredith Shih, for Boston Bar Association, amicus curiae, submitted a brief.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         The defendant, Maksim Lustkov, was sixteen years old in October, 1999, when he committed an armed home invasion during which he shot one occupant three times in front of the occupant's teenage daughter. A Juvenile Court jury adjudicated the defendant a youthful offender on indictments charging armed home invasion and various related offenses, and he was sentenced to a mandatory minimum State prison term of from twenty years to twenty years and one day.[1]

         In 2016, after our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013), S.C., 471 Mass. 12 (2015), the defendant filed a motion for relief from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), arguing that all mandatory minimum sentences violate art. 26 of the Massachusetts Declaration of Rights when applied to juveniles. He also argued that the evidence was insufficient to sustain his adjudication as a youthful offender, and that the judge incorrectly instructed the jury on the issue. A Juvenile Court judge denied the motion, and we granted the defendant's application for direct appellate review.

         On appeal, the defendant primarily argues that in light of this court's decision in Commonwealth v. Perez, 477 Mass. 677 (2017) (Perez I), his mandatory twenty-year minimum sentence is presumptively disproportionate because it imposes a longer period of incarceration prior to eligibility for parole than that applicable to a juvenile convicted of murder without a finding of extraordinary circumstances based on consideration of the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-478 (2012) (Miller). He further argues that our reasoning in Perez I applies with equal force to invalidate all mandatory minimum sentences when applied to juveniles.

         For the reasons that follow, we conclude that the evidence was sufficient to sustain the defendant's adjudication as a youthful offender and, although we agree that the judge failed to instruct the jury that they were required to find the defendant's qualifying age in order to adjudicate him a youthful offender, this error does not require reversal. As to the constitutionality of the defendant's sentence, we agree that the defendant's sentence violates the proportionality requirement inherent in art. 26. Our decision in Perez I, 477 Mass. at 686, requires sentencing judges to follow an individualized process that allows for the consideration of mitigating circumstances related to the juvenile's age and youthful characteristics before imposing a sentence with a longer period of incarceration prior to eligibility for parole than that applicable to a juvenile convicted of murder. The defendant was sentenced to a mandatory minimum term exceeding that applicable to a juvenile convicted of murder without a Miller hearing in violation of the requirements announced in Perez I, and refined in Commonwealth v. Perez, 480 Mass. (2018) (Perez II), also decided today. Accordingly, we remand the case to the Juvenile Court for resentencing.[2]

         Background.

         1. Facts.

         We summarize the facts relevant to the present appeal in the light most favorable to the Commonwealth, reserving certain details for later discussion. At approximately 8:30 P.M. on October 31, 1999, Fulia Aiken heard a knock at the door of the house where she lived with her father, Amhet Aiken.[3] Fulia opened the door and the defendant, who was armed with a firearm and accompanied by two accomplices, forced his way inside. All three individuals were wearing masks. Ahmet, in response to his daughter's screams, came downstairs and a struggle ensued. During the struggle, Ahmet knocked off the defendant's ...


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